« PreviousContinue »
and origin, imprisonment did not originate with the law of Moses. Instead of imprisoning for crime, the Mosaic code requires the immediate and prompt execution of the law. It was their doctrine that laws were made to be executed ; and the divine Lawgiver saw fit to decide that there should be no needless delay in the execution. Another striking difference related to the character of the crimes that were punishable with death. They were all either of high moral malignity, or crimes that tended to the subversion of their whole civil polity, and endangered the social existence of the nation. The propriety of the law against them rests upon the same grounds as the punishment of treason and murder, and is fully justified. In ordinary cases, constituted as that nation was, under a Theocracy, they struck at the root of social existence; and the severity of the punishment against them was in self-defence for the very existence of society. Besides, with a people of extreme simplicity as to property, almost the only punishment must be personal; and as they were emerging from a slavery where the taking of life was probably very common, capricious, and despotic, without severe punishments they were without any. One thing also, is quite remarkable in a code where the ignorance of the people and the simplicity of property and social state left the lawgiver few punishments of which to choose, and threw him upon stripes or death. I mean the tenderness of blood, and the almost superstitious reverence for human life. The ox that killed a man, or woman, was stoned, nor should his Aesh be eaten; and if he were an unruly os, and this were known to his owner, not only was the ox stoned, but his owner was put to death. This is the origin of all those forfeitures in law which arise from the misfortune rather than the crime of the owner, and are called deodand. * It is not long since this principle was carried into extensive operation in the laws of England. Whatever personal chattel was the immediate occasion of the death of any reasonable creature, was forfeited to the king and applied to benevolent purposes. Bracton states the law to have been, that “all things which, while in motion, caused death, are to be offered to God.” But the English law was even more extensive than this. If a man were killed by a fall from a cart, or a horse, the cart or horse was forfeited. A well in which a person was drowned, was ordered to be filled up under the inspection of the coroner. And among the Athenians,“ whatever was the cause of man's death by falling upon him, was exterminated, or cast out of the dominions of the republic.” There seems to us to be superstition in such a law, but it is a humane superstition. The mind was taught by it to contemplate with horror the privation of human life ; and it might not be familiar even with an insensible object which had been the occasion of death, lest that sentiment should be diminished. The most corrupt and melancholy state of human society is that in which the mind becomes familiarized to blood; and it is a question of grave import, whether any thing is gained by abrogating even the sacred, and, if you please, superstitious, regard to human life which was inspired by this great principle of the Mosaic code.
When you take up the special examples of penal la w under this code, you cannot but admire their wisdom. You have in the first place idolatry, and the penalty was death. It was treason against the state to acknowledge any other as king, than God. This crime also was always connected with the inhuman and bloody practice of offering human sacrifices. It was of most aggravated enormity and struck at the very existence of the nation. The next crime is blasphemy, which was punished with death for the same sufficient reason. The next is deliberate and wilful murder. “ He that smiteth a man so that he die, shall surely be put to death." This was a republication of the law given to Noah, and in my humble judgment is obligatory upon the world in all subsequent ages. The nice distinctions laid down in the Mosaic code between murder and manslaughter, are to the present day the just and recognized principles of the law of homicide, and are carried out into every ramification without any new principle. Another mortal crime is smiting a parent. This is a very unnatural, uncommon, and improbable crime. Like several others, it struck at the basis of society, framed as it was on a patriarchal model and organization, which could not continue long on the land given to it, unless the simple principles of its organization were severely defended. So of cursing a parent, which was also punished with the same severity ; and so of inveterate disobedience to parents for the same reason. So also of incest, sodomy, bestiality, forcible violation, and adultery, and all for the same reason. So also of false pretensions to prophecy for the same reasons with idolatry and blasphemy. So also of witchcraft. Whether witchcraft be imaginary or not, no cruelty is known equal to that committed by pretenders to this mystery. Witness the medicine-men of our own western Indians. In an ignorant body of slaves, without intelligence and subject to superstitions, pretensions to witchcraft were likely to be most disastrous to the happiness of the people, and very dangerous to the government : and I would at this day, legislating
* Blackstone's Commentar es, vol. I, chapter 8th.
for our Indians, or for negroes subject to Obi superstition, punish conjuring with death, quite as readily as any crime short of actual murder, or treason. The only other crimes punishable with death by the Mosaic code, were man-stealing, Sabbath-breaking, and contumacious resistance against the supreme authority of the State. The time was, and that less than two hundred years ago, when by the laws of England, one hundred and forty-eight crimes were punishable with death. By the Mosaic code there were seventeen. Let the profane cease from their rebukes of the penal statutes of Moses !
There is one fact in relation to the Mosaic code which is a severe rebuke to modern governments. No injury simply affecting property, no invasion of personal rights whatever, could draw down upon an Israelite an ignominious death. Mammon was not the god of the Mosaic law. That code respected moral depravity more than gold. Moral turpitude and the most atrocious expressions of moral turpitude, these were the objects of its unsleeping severity.
“ Mammon leads us on,
Nor is it a slight commendation of that code, that its laws were equal. Ye “shall have one manner of law as well for the stranger, as for one of your own country.” Every man in the community had the same protection from the penal laws.
Not a little has been said against the law of retaliation, or the lex talionis, as it is enjoined in this code. But has it not been hastily said ? No man doubts that, as the law of individual and private revenge, it is wrong. It is in this view, and only in this view, that it is condemned by the Saviour, and superseded by the injunction,
66 Resist not evil.” No man may take the law into his own hands, and become at pleasure the avenger of his own wrongs. But where is its severity, or inequitableness, as the adjudicated decision of a legal tribunal? The lex talionis in relation to deliberate and premeditated crimes is just, and it is not certainly impolitic. “Thou shalt give life for life.” Nor do I see any injustice or inexpediency in punishing deliberate maiming by a similar judicial maiming. No man can say it is not the measure of punishment most consonant to natural equity. As applied to perjury, a crime always of great and studied premeditation, there is a strong propriety in its being rigidly executed, and in doing to the perjurer “as he had thought to have done unto his brother.”
Nor let the conscientious reader of the Mosaic law be induced to imagine that there is any thing either in the civil or penal code of the Hebrews that requires and justifies sin. It is not so. Great injustice has been done in this particular to the Old Testament, as I have remarked before. There is
difference between a moral and a judicial code, even though proceeding from the same source; and though what the former may not allow, the latter may not require, yet what the former may forbid, the latter may leave unnoticed, and even regulate and control. It is not necessary that a code of civil laws should adjudicate upon every moral evil. It is not best that it should. Notwithstanding all that has been said and written, there is no evidence to my mind that there is any thing in the laws of Moses which countervails the